In re H (Minors) (Abduction: Acquiescence)

For Article 13 of the Hague Convention, acquiescence depends on the wronged parent’s actual, subjective state of mind. It is a question of fact, determined from all the circumstances, and the abducting parent bears the burden of proof.

Contemporaneous words and conduct will usually carry greater weight than later assertions of undisclosed intention. Attempts at reconciliation, voluntary return, access or resolution through religious advisers do not ordinarily establish acquiescence.

Domestic categories of active and passive acquiescence must not replace the Convention’s uniform international meaning. Exceptionally, a parent who has not subjectively acquiesced will nevertheless be treated as having done so where clear and unequivocal conduct led the other parent to believe that summary return would not be pursued and was wholly inconsistent with such return.

The mother wrongfully removed three children, habitually resident in Israel, to England without the father’s consent. The father first pursued remedies through an Israeli Beth Din, as required by his Orthodox Jewish faith, and invoked the Hague Convention after receiving authority to use the secular courts.

Sumner J found that the father had never acquiesced and ordered the children’s immediate return to Israel. The Court of Appeal, reported at The Times, August 14, 1996, reversed that decision. It treated his use of the Beth Din and his request for Passover access as active conduct from which acquiescence was to be assessed objectively.

The central issue was whether Article 13 required an inquiry into the father’s actual state of mind, or an objective assessment of his conduct, and whether his conduct precluded him from relying on his true intention.

1. Disposition. Lord Browne-Wilkinson delivered the leading speech. Lord Jauncey of Tullichettle, Lord Mustill, Lord Hoffmann and Lord Clyde expressly agreed with his reasons. The House unanimously allowed the appeal and ordered the children’s summary return to Israel.

2. Meaning of acquiescence. Per Lord Browne-Wilkinson, Article 13 concerns the wronged parent’s actual state of mind: whether that parent in fact went along with the wrongful removal or retention. Acquiescence is a subjective question of fact, not an intention objectively imputed from appearances. An international convention must have the same meaning in all Contracting States. Purely English concepts, including rigid categories of active and passive acquiescence, must therefore not govern its construction.

3. Evidence and burden. The abducting parent bears the burden of proving consent or acquiescence. The trial judge must determine actual intention from all the circumstances. Contemporaneous words and conduct will commonly receive more weight than later, potentially self-serving evidence, but this concerns evidential weight rather than an objective rule of law. The approach of Neill LJ in In re S (Minors) (Abduction: Acquiescence) [1994] 1 FLR 819 and Millett LJ in In re R [1995] 1 FLR 716 was approved.

4. Exceptional preclusion. A strictly exceptional rule applies where the parent did not subjectively acquiesce but used words or actions which clearly and unequivocally showed, and led the other parent to believe, that summary return would not be pursued. The conduct must be wholly inconsistent with seeking summary return. Passing remarks, requests for access, negotiations for voluntary return and adherence to religious procedures will not normally satisfy that standard.

5. Application. The trial judge found that the father had never acquiesced. His resort to the Beth Din was consistent with seeking a decision in the children’s State of habitual residence and did not contradict later reliance on the Convention. His Passover proposal was equally consistent with preserving contact. Neither matter clearly and unequivocally renounced summary return. The Court of Appeal had therefore misdirected itself, while the judge’s conclusion remained valid despite an immaterial factual misdirection concerning the date of a letter.

1. House of Lords: Unanimously allowed the father’s appeal from the Court of Appeal and ordered the children’s summary return to Israel.
2. Court of Appeal: Stuart-Smith, Waite and Otton LJJ reversed Sumner J, held that the father had acquiesced and exercised the Article 13 discretion against return: The Times, August 14, 1996.
3. High Court: Sumner J found that the father had not acquiesced and ordered the children’s immediate return to Israel, subject to the father’s undertakings.